Ghailani and Military Detention, continued

I agree with Ben and Bobby that the disappointing Ghailani verdict does not imply that the prosecution should have been brought in a military commission. As they argue, most if not all of the challenges of Ghailani’s trial would have been replicated in a commission, and a verdict in a commission would have been harder to defend on appeal. I also agree that it is wrong to view commissions as the muscular trial option and civilian trials as the weak trial option. The truth, if anything, is the opposite.

But while the Ghailani verdict does not argue for commissions, it does, I think, highlight the attraction of military detention without trial. Imagine, as now seems quite possible, that Ghailani had been acquitted. The administration would have faced the terrible choice between releasing him or (as both the Attorney General and Judge Kaplan have said is possible) continuing to hold him in military detention indefinitely. The first option is unsafe for the nation and suicidal politically. The second option looks terrible in light of acquittal, and would harm the legitimacy of every subsequent terrorist trial. The reason the first option is unsafe and the second option is available is that Ghailani helped conduct a major terrorist operation on behalf of a group with which we are at war. Military detention was designed precisely to prevent such soldiers from returning to the battlefield. It is a tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation. And this morning it looks more appealing than ever.

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.